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.. ... 11 RPA Law Review r Validity of Nonresident and Other Discriminatory Regulations in Municipal Recreation by James C. Kozlowski In times of constrained budgets, of this power, especially where the regulation. It had no demonstrable high inflation,and eroding tax bases, purpose of the fee is to raise revenue relationship to crowd control or the parks and recreation systems are (9 McQuillan, Municipal Corpora- preservation of public safety on the relying more heavily on user fees tions, 3rd edition revised 1978, § beach. As a result,the ordinance was and perhaps limiting facility use to 26.24, p. 51). As a result, the not a proper exercise of municipal residents to make up for the shortfall authority to provide a given recrea- police power. in public revenues. It is, therefore, tional opportunity does not According to the court, a munici- appropriate that administrators be necessarily imply the authority to pal corporation "possesses only such aware of some general legal princi- charge participants a fee. While the rights and powers as have been pies which determine the validity of exercise of authority is valid, the granted in express terms,or arise by discriminatory fee structures and the charging of the fee may be ultra necessary or fair implication, or are exclusion of nonresidents by local v i res. This general principle, incident to the powers expressly con- recreation agencies. however, does not necessarily hold ferred or are essential to the declared The law of "municipal corpora- in every jurisdiction. objects and purposes of the munici- tions" provides a starting point to According to McQuillan, the pality."At the time,there was no ex- III local public institutions which derive power of a municipality to impose a press grant of power to munici- their limited authority from the fee to cover the cost of a police power palities by the State of New Jersey to sovereign power of the state. Such regulation or to raise revenue for raise revenues through beach fees. local governmental authority is general municipal purposes "de- The court refused to find implied usually expressed in a corporate pends upon the legislative policy of police power absent a clear showing charter. This charter enumerates the the particular state, the terms of the by the municipality of the fee's rela- specific powers of government that grant of power [from the state to the tionship to the public health, safety, have been conferred on cities, municipality], and the construction and welfare. villages, towns, and other public en- placed thereon by the courts"(9 Mc- In the case of Logan v. Town of titles by the state. Quillan § 26.24 p. 58). As a result, Somerset 271 Md 42, 314 A2d 436 In addition to expressed powers park and recreation professionals (1974), the court found that the contained in the corporate charter, must be aware of relevant statutes town's charter limited the provision municipal corporations derive im- and court decisions in their particu- of recreational facilities to residents plied police power from the lar jurisdiction to determine the of the town. A nonresident of the sovereignty of the state.Police power limits of municipal recreation fee town had challenged a resolution allows a municipal corporation authority. which restricted the use of a munici- limited authority to take those ac- In the case of Kirsch Holding Co. v. pal swim club in a public park to tions deemed necessary to preserve Borough of Manasquan, 24 N.J. Superdues paying residents. the public health, safety, and 91, 93 A2d 582, (1952) a local ordi- The town charter empowered the welfare. 'lance designed to regulate beach use town to adopt all ordinances and through registration fees for all users resolutions"not contrary to the Con- Scope of power over 12 years old was declared void stitution and the laws of the State of as an ultra vires act. Quoting Mc- Maryland . . . as it may deem Absent a clear delegation of power Quillan, the court said that "munici- necessary for the protection and pro- from the state, municipal corpora- pal power to regulate a particular ac- motion of the health,safety,comfort, tions may not ordinarily have the tivity embraces or implies the power convenience, welfare and happiness authority to charge revenue produc- to license as a mode of regulation and of the residents of the town ing user fees as a reasonable exercise to impose a license fee sufficient in (emphasis added) and visitors of police power. Actions taken by amount to cover the cost of regula- thereto and sojourners therein." Ig- • municipal corporations which are tion." This power to regulate, noring the possibility that plaintiff outside their defined scope of power however, did not authorize the im- Logan may have qualified as a "visi- are "ultra vires" and consequently position of a fee to produce addi- tor" or "sojourner" under the town void. tional revenue. charter, the court found the town Grants of power to charge fees are In this instance, the court found without the power to provide a strictly construed against the exercise that the user fee was not a mode of swimming pool for the nonresidents Continued 28 PARKS& RECREATION/MARCH 1982